Seaquarium Wades Into Killer Whale Case

TACOMA, Wash. (CN) - A federal judge ruled that the Miami Seaquarium can intervene in a case filed by orca advocates who want a federal agency to set aside a rule that kept captured killer whales off the endangered list.

People for the Ethical Treatment of Animals suedthe National Marine Fisheries Service in November 2011, after the agency refused to grant captured Southern resident killer whales and their offspring endangered species status.

The animal activists' case centers on Lolita, a killer whale who's lived at the Miami Seaquarium for more than 40 years.

They claimed the orca is "confined to an inadequate tank, which is smaller than the minimum regulatory requirements, is without sufficient space, without any companions of her own species, and without sufficient shelter from the sun."

If captured whales were granted endangered status, "it would also ensure that Lolita could no longer be 'taken' in violation of the [Endangered Species Act], and thus ensure that she would be treated humanely and possibly returned to the wild," the advocates said in their complaint.

The Miami Seaquarium sought to intervene on Jan. 25, claiming it should be allowed to speak "as a matter of right or, if not of right, then permissive intervention," according to U.S. District Judge Benjamin Settle's 5-page order, granting in part and denying in part the request to intervene.

Settle found that the Seaquarium does not have a "right" to intervene in the Seaquarium's treatment of the captive whale.

"While it is true that the Seaquarium may be impacted if the agency action is set aside, 'how [the Seaquarium] has humanely treated Lolita for over four decades' is wholly irrelevant to the issue of whether NFMS complied with the Administrative Procedures Act during the rule-making process," Settle wrote. (Brackets in complaint).

The activists' only cause of action concerns the National Marine Fisheries Service rule, not the aquarium's treatment of the whale, Settle said.

"In other words, even if NMFS fails to argue that Lolita is properly cared for, NFMS will undoubtedly make every argument that its exclusion rule ... was not arbitrary or capricious. Therefore, the Court denies the Seaquarium's motion to intervene as a matter of right," Settle wrote.

Although PETA did not contest Miami Seaquarium's permissive intervention, they asked the court to keep the aquarium from filing a motion to transfer the case, Settle said.

He found that while Miami Seaquarium does not appear to have a promising argument to support a transfer, he will not prevent the company from filing such a motion.

"The Court is not persuaded that it must restrict the Seaquarium's due process rights by regulating the type of motions that it may file," Settle wrote.

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